Walsh v Police - [2014] NZHC 320

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000140 [2014] NZHC 320

BRITTANY JULIE PATRICIA WALSH

v

NEW ZEALAND POLICE

Hearing: 27 February 2014

Appearances: J E Bayley for Appellant
K J Basire for Respondent

Judgment: 28 February 2014

JUDGMENT OF DUNNINGHAM J

[1] This is an appeal against two aspects of the sentence imposed on the appellant, by the District Court in Christchurch on 13 December 2013, for a second excess blood alcohol offence.

[2] The appellant was sentenced to:

(a) community detention for a period of four months with a curfew period of 7.00 pm until 7.00 am, Monday to Sunday,

(b)community supervision for a period of one year with a special condition that the appellant attend an assessment for alcohol and drug treatment as directed by a probation officer and to attend and complete counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation
officer,

WALSH v NEW ZEALAND POLICE [2014] NZHC 320 [28 February 2014]

(c) disqualification from holding a driver’s licence for one year from

13 December 2013 with authorisation to apply for a zero alcohol licence at the end of the disqualification period; and

(d) indefinite disqualification from holding a driver’s licence.

[3] The appeal is against the community detention aspect of the sentence and the length of the period of community supervision. The effective period of disqualification of at least a year is not appealed, given that is mandatory under the provisions of s 65, 65B and 100 of the Land Transport Act 1998.

Background

[4] The appellant is a 23 year old woman, of otherwise good character, who is employed full-time as a legal secretary.

[5] In December 2010 she was convicted of driving with an excess breath alcohol level. The level of alcohol on her breath on that occasion was
843 micrograms of alcohol per litre of breath. She was fined $800 with Court costs of $132.89 and disqualified from driving for six months for that offence.

[6] She committed the present offence at around 1.00 am on the morning of

21 September 2013. She was found driving on Jacks Point Road near Hanmer Springs after leaving a local nightclub to return to her accommodation, approximately one kilometre away. An evidential breath test showed 1,076 micrograms of alcohol per litre of breath.

The District Court decision

[7] In the District Court, the sentencing Judge noted that aggravating features of the offence, being the high level of excess blood alcohol, and the previous conviction for driving with an excess blood alcohol level in 2010. He also acknowledged the positive factors, being that she was in “sound employment”, had the support of her family and that she was motivated to deal with the issues underlying the offence. He noted the assessment that she was at a low risk of reoffending, but concluded “the

level of alcohol is too high and the rapidity with which you have offended is also too

speedy”. For these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walsh v Police

Details

AGLC: Walsh v Police [2014] NZHC 320
Case: [2014] NZHC 320
Decision Date: 28 February 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Walsh appealed against the severity of a sentence imposed on her by the Christchurch District Court. Walsh was sentenced to community detention and community supervision for a second excess blood alcohol offence. The appeal contested the nature and length of the sentence. The District Court had imposed community detention for four months and community supervision for one year, in addition to disqualification from holding a driver’s licence. Walsh argued that a fine and disqualification were the usual sentences for a second drunk driving offence and that the length of the supervision period was excessive.

The Court considered whether the District Court’s sentence was an error and whether it was out of step with other comparable cases. Walsh’s counsel submitted that the sentence was excessive and punitive, particularly in light of the appellant’s good character and motivation to rehabilitate. The Court considered the hierarchy of penalties and whether the District Court had properly applied the Sentencing Act 2002. The Court found that the District Court had not properly considered the provisions of s 13 of the Sentencing Act 2002, which directs the Court to impose a fine unless it is satisfied that a fine would not achieve the purpose for which the sentence is imposed. The Court found that the sentence imposed was significantly higher than that imposed in comparable cases.

The Court allowed the appeal and substituted the sentence of community detention and community supervision with a sentence of six months community supervision, with a special condition that the appellant attend an assessment for alcohol and drug treatment and complete any recommended treatment or programme. The disqualification aspects of sentence imposed by the District Court are, of course, not appealed and remain in effect.

Orders